'The Internet of Other People’s Things'

Who owns the air? What is private property, really? Do lawmakers ever bother to write their own rules?

Deep and ambiguous questions dominated the discussion as the National Telecommunications and Information Administration, following the orders of a presidential memo, held its second of four “multi-stakeholder process” meetings on Sept. 24 to work out best practices for drones in American skies.

Privacy vs. practicality

Lawyers representing media, drone makers, citizens groups, Realtors and more assembled to hash out best practices.

Harley Geiger, senior counsel at the Center for Democracy and Technology, presented a draft best privacy practices document that drew both praise and questioning criticism.

Geiger’s document points to the Federal Trade Commission’s Fair Information Practice Principles (FIPPs) as a guideline and lays out basic principles for commercial and noncommercial operators of unmanned aircraft systems: Label your drone so people know who’s flying it, let people know when you’ll be flying over their property, avoid collecting “sensitive” information if you don’t need it.

Some concerns raised by the document: Does a noncommercial hobbyist operator become retroactively commercial if he sells a photograph he took with his drone? And what does “sensitive information” include?

Associated Press attorney Brian Barrett noted constitutional protections for newsgathering. “We would caution NTIA against adopting best practices that would infringe on those rights,” he argued.

But who qualifies as a newsgathering organization in the age of the iPhone and Twitter?

“I don’t know how to cut that baby in half,” Geiger admitted.

Trade association NetChoice’s lawyer Carl Szabo advocated clean, limited best practices.

“If we’re going to have rules, they should be kind of neutral whether it’s commercial or noncommercial,” argued Szabo. “As we get into use limitations, that gets really dangerous.”

He also warned of court battles to come.

If he represented a company using drones to deliver a product from one location to another, Szabo asked, “I should go get the written consent of every landowner that lives below the public airspace [before each delivery]?”

“It’s not practicable,” Geiger countered, pointing to the extensive use of the word “reasonable” in his document to show that he wouldn’t place such a burden on a company. He added that companies should try to route flights over public lands when possible.

“You’re saying you can’t go door to door and knock on people’s houses?” Szabo fired back. “I’m saying that’s how this will be argued [in court].”

Geiger told FCW that "the purpose of drone privacy best practices is to correct the major public image problem the drone industry faces by demonstrating that the industry is serious about privacy protection."

“We should encourage operators before they fly drones to think about the data they’ll be collecting,” Amie Stepanovich, senior policy counsel at the nonprofit Access Now, said in the meeting. “We tried to stop short of actually coming up with rules.”

John Resnick, representing the UAS company DJI, weighed in on the tech side.

“A man leaves a strip club and is photographed, and that photograph is distributed,” Resnick said, reading from a list of UAS harms presented at the meeting. “If it’s a public street in a public area, I’m not sure I see how an invasion of privacy is occurring.”

If the picture was taken by a person on the ground with a cell phone, there wouldn’t even be a question, Resnick noted.

“Now we’re talking, just because of the technology that’s involved -- I don’t think it should be included at all,” he said, arguing for that potential harm to be struck and best practices to stay tech-neutral.

“I don’t want to be flying a UAV in a park and be arrested for harassment or stalking,” Szabo added.

When is a rule a rule?

While Geiger, Stepanovich and others stressed that “best practices” were just that – suggestions for optimal behavior, not hard and fast rules – Szabo worried that lawmakers would simply lift the eventual NTIA best practices and turn suggestions into law.

“It’s very easy for legislators to take a document like this and start crossing out the word should and replacing it with the word shall,” Szabo warned.

But his minimalist urging wasn’t left unchallenged.

“The president clearly thinks the law should have other best practices laid on top of it,” Stepanovich said, pointing back to the presidential memo that had brought them together in the first place.

And Margot Kaminski, law and technology professor at Ohio State University’s Moritz College of Law, added an important reminder of the privacy stakes when it comes to drones in the national airspace.

“With UAS,” she said, “it’s not the ‘Internet of Things.’ It’s the internet of other people’s things.”

The NTIA multi-stakeholder process meetings are scheduled to continue on Oct. 21 and Nov. 20 in Washington, DC.